Homeless Inuk man wins constitutional challenge in Ottawa court

"Imposing surcharges on people who don’t have the ability to pay does nothing to help victims"

LISA GREGOIRE

Ontario Court Justice David Paciocco has struck down as unconstitutional a federal tough-on-crime measure that the judge said violates the charter rights of a homeless, destitute Inuk man living in Ottawa.

Paciocco handed down his judgment July 31 in the case of Shaun Michael, a 26-year-old alcoholic who was facing $900 in mandatory victim surcharges for what the judge considered to be relatively minor “nuisance” offences committed when Michael was extremely intoxicated.

Michael, whose childhood was filled with abuse and neglect and who grew into an angry adult who abused alcohol and drugs and was unable to hold down a job, receives a street allowance of $250 a month.

He owns nothing but the clothes on his back and would not be able to pay $900 in surcharges — at present or in the foreseeable future — argued his lawyer, Stuart Konyer.

But because victim surcharges are now mandatory, Konyer could not ask that they be waived so he launched a constitutional challenge under Section 12 of the Charter of Rights and Freedoms which assures everyone, “the right not to be subjected to cruel and unusual treatment or punishment.”

Far from being “tough on crime,” these mandatory fines are actually just a means of punishing the poor, Konyer said.

“That’s part of the mythology they like to perpetrate,” said Konyer, who has several clients in the same predicament as Michael.

“They try to wrap it in the guise of tough on crime and helping victims. Imposing surcharges on people who don’t have the ability to pay does nothing to help victims. It’s just pointless.”

Victim surcharges, which are collected and used to fund programs for victims of crime, have existed in Canada since 1989, but in October 2013, the federal Conservatives made them mandatory: $200 for each indictable offence, $100 for summary offences, or 30 per cent of a fine imposed by a judge.

Several lawyers and judges, including some in Nunavut, have been publicly critical of the amendment, saying the decision to impose the surcharge must rest with the presiding judge.

Konyer said Michael doesn’t even know about the decision, because he’s away camping with a group from Ottawa’s Wabano Centre for Aboriginal Health, but said he will no doubt be relieved when he hears the news.

In reaching his decision, Paciocco had to consider whether the surcharges were a punishment so cruel and unusual as to “outrage standards of decency,” within society.

The Crown in the case argued that since Michael could be given an extended time to pay, it doesn’t constitute excessive punishment.

But Paciocco concluded that allowing that unreasonable debt to hang over a penniless man was still an undue form of punishment for Michael.

“I think it was the right decision,” Konyer said.

“There have been a number of judges across the country who have said these amendments are unconstitutional and I would hope that the government would listen to those judges and draft a new law that complies with the charter and allows courts, in cases of real poverty, not to impose a surcharge like this.”

Michael faced nine charges stemming from incidents in January, March and June of this year. Those charges included theft, minor assaults, mischief and breaching probation.

In one case, an intoxicated Michael was found wandering down the middle of a busy street. When police tried to apprehend him, he kicked the attending officer.

In another case, Michael stole a bottle of alcohol from the liquor store and, in resisting both a staff member and police officer who was later called in, assaulted both by kicking them.

Paciocco heard the case in mid-July and told lawyers he would likely come back with a decision in September, but surprised everyone by rendering a decision within two weeks.

It seems clear, from the language contained in the decision, that Michael’s life story played a large role in Paciocco’s decision.

“Mr. Michael is the product of abuse. His introduction to the world was domestic violence, drunkenness and parental neglect. His formative years were marked by bullying, social rejection and cultural displacement. He now lives on the margins of society. He has no stable home. He is the poorest among us,” Paciocco wrote in his 31-page judgment.

“That he is addicted is not surprising. That he is unable to behave himself civilly when intoxicated is predictable. And while it is not excusable, the fact that he is frustrated enough to engage chronically in the largely nuisance behaviour he is being sentenced for is all but inevitable.”

While this judgment is not binding on other courts, it is precedent-setting and, because it comes from such a prominent jurist, would likely be “persuasive” toward other judges considering similar cases, Konyer suggested.

The decision would be binding on lower courts if it were to be upheld at the Ontario Superior Court or Ontario Court of Appeal, Konyer said.

And it’s likely the Crown will appeal this case.

“The Crown will have to make that decision,” he said. “I expect they would. I know they are in the process of appealing some other judgments.”

Michael is currently awaiting placement at an Ontario Aboriginal residential treatment centre.